Northern Ireland protocol: Does Article 16 take us back to a hard Brexit?

PM sets out ‘insurance’ plan to rewrite Northern Ireland’s Brexit deal

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Prime Minister Boris Johnson has warned that the situation regarding the Northern Ireland protocol is now “very serious”. Pressure is growing on the Government to find a resolution with the European Union (EU) who are standing firm on their stance that “renegotiation is not an option”.

What does hard Brexit mean?

The term ‘hard Brexit’ was used during the Brexit process to capture the anticipated economic, social and political impact of a sharp break in relations between the UK and the EU as a result of the former leaving the bloc.

According to the think tank the UK in a Changing Europe: “A ‘hard’ Brexit most often implied a radically different economic relationship between the UK and the EU than had been the case while the UK was an EU member.

“Most obviously, it came to mean a future relationship with the UK outside the EU’s single market and customs union, and trading with the EU on the basis of a free trade agreement.”

In comparison, a ‘soft Brexit’ refers to a situation where the UK would have sought to retain a close relationship with the EU.

Staying within the EU’s single market would have reduced the economic impact of leaving the bloc.

But it would have meant abiding by the rules that accompany the legislation, such as maintaining the free movement of EU residents.

If the UK had chosen to remain in the customs union, it would have also hampered its ability to pursue an independent trade policy.

Does Article 16 take us back to a hard Brexit?

The UK and EU agreed to the creation of the Northern Ireland protocol, in October 2019.

By allowing goods to flow freely between the Republic of Ireland and Northern Ireland the deal removed the threat of a hard border.

But the arrangement has also resulted in what’s been labelled as an Irish Sea border.

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Goods that now arrive into Northern Ireland from the rest of the UK are subjected to more stringent checks and controls.

In the scenario that either the UK or EU feel that the protocol is leading to significant issues or hampering their capacity to trade, then they have the option of activating Article 16.

The component sets out the process for taking unilateral “safeguard” measures, which in reality would amount to suspending parts of the deal.

Specifically, Article 16 says safeguard measures can be taken if the protocol is leading to serious “economic, societal or environmental difficulties” that are liable to persist.

If Article 16 was triggered a return to a hard Brexit is feasible as the UK would need to renegotiate terms for a new trade deal between Britain and the EU.

A hard Brexit could also theoretically re-appear if the Government goes ahead with plans to introduce new British legislation that would allow ministers to override parts of the Brexit deal.

Foreign Secretary Liz Truss is expected to give a statement on Tuesday after reports emerged that Downing Street is poised to tear up parts of the protocol.

Any new legislation that will be announced by the Government is expected to give MPs the power to switch off border checks on goods travelling between Northern Ireland and the Republic of Ireland.

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